47-37-08. Duration - Amendment by court action

47-37-08. Duration - Amendment by court action

1. An environmental covenant is perpetual unless it is:

a. By its terms limited to a specific duration or terminated by the occurrence of a

specific event;

b. Terminated by consent pursuant to section 47-37-09;

c. Terminated pursuant to subsection 2;

d. Terminated by foreclosure of an interest that has priority over the environmental

covenant; or

e. Terminated or modified in an eminent domain proceeding, but only if:

(1) The agency that signed the covenant is a party to the proceeding;

(2) All persons identified in subsections 1 and 2 of section 47-37-09 are given

notice of the pendency of the proceeding; and

(3) The court determines, after hearing, the termination or modification will not

adversely affect human health or the environment.

2. If the agency that signed an environmental covenant has determined the intended

benefits of the covenant can no longer be realized, a court, under the doctrine of

changed circumstances, in an action in which all persons identified in subsections 1

and 2 of section 47-37-09 have been given notice, may terminate the covenant or

reduce its burden on the real property subject to the covenant. The agency's

determination or its failure to make a determination upon request is subject to review

pursuant to chapter 28-32.

3. Except as otherwise provided in subsections 1 and 2, an environmental covenant may

not be extinguished, limited, or impaired through issuance of a tax deed, foreclosure of

a tax lien, or application of the doctrine of adverse possession, prescription,

abandonment, waiver, lack of enforcement, or acquiescence, or a similar doctrine.

4. An environmental covenant may not be extinguished, limited, or impaired by

application of chapters 38-18.1 and 47-19.1.